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Dan Morain: Rolling back regs on fire retardants

Gov. Jerry Brown is about to repent for a sin he didn't know he committed in 1975.

Ten months after Brown took office the first time, his administration produced a little-noticed regulation requiring that furniture sold in California comply with the strictest fire safety standard in the nation.

Befitting its turgid language, the regulation came to be known as Technical Bulletin 117. Although it was supposed to save lives, another story has emerged in the intervening decades. Technical Bulletin 117 has resulted in the addition of countless tons of toxic chemicals to couch cushions, carpet pads and, alas, our bodies.

In June, Brown started undoing Technical Bulletin 117, telling the obscure arm of the state that is its keeper – the Bureau of Electronic and Appliance Repair, Home Furnishings and Thermal Insulation – to dramatically alter it.

Brown used the word "toxic" seven times in a 350-word news release announcing the decision. For emphasis, he noted that "California women have much higher levels of toxic flame retardants in their breast tissue than women in other states and countries."

California has led the nation on many environmental issues. In this instance, however, the state led the nation into a dark hole, and filled it with substances linked to maladies such as cancer and neurological dysfunction. Flame retardants will be part of the ecosystem for decades.

The family of flame retardants in question goes by the complicated name polybrominated diphenyl ethers, or PBDE for short. If your couch has 20 pounds of cushion, you can figure it contains about a pound of PBDE. The problem is that PBDE doesn't stay put, as studies going back two decades show.

A recent UC San Francisco study showed dust in homes in the towns of Bolinas and Richmond had 200 times more brominated flame retardants than did European homes. Californians walk around with two to 10 times more of this stuff in their bodies than people living in other parts of the country, other studies have shown.

A study published earlier this month in the journal Toxicological Sciences homed in on one component of the flame retardants, BDE-49, finding that it accumulates in human blood, fat and breast milk, although it is among the least abundant components of fire retardants.

The MIND Institute at UC Davis summarized the study by saying the "chemical, quite literally, reduces brain power," noting that the findings "bolster the argument that genetics and environment can combine to increase the risk of autism and other neurological disorders."

Like many questions of health and the environment, the use of flame retardants has come down to lobbying.

Chemical companies won almost all their battles, until last May when the Chicago Tribune published a blockbuster series questioning the science and lobbying surrounding flame retardants, and raising doubts about whether they did much to stop fires. Aides to Brown cite that series as one reason why he acted.

Much of the lobbying took place in Sacramento, starting in 2007 with Californians for Fire Safety, funded by three leading flame retardant manufacturers, Albemarle Corp. of Virginia, Chemtura of Pennsylvania, and ICL Industrial Products of Israel.

Californians for Fire Safety, also known as the Bromine Science and Environmental Forum, burned through $6.66 million to kill two bills in 2007 that would have ended Technical Bulletin 117 and restricted brominated fire retardants.

In 2008, Californians for Fire Safety was renamed Citizens for Fire Safety. Funded by the same companies, Citizens for Fire Safety spent $2.6 million lobbying in 2008 to kill two bills in Sacramento. It also went national.

Between 2007 and 2012, Citizens for Fire Safety defeated no fewer than 58 bills in 21 states from Alaska to North Carolina. Only two bills passed, one in Maine and one in Washington state, noted Sacramento-based consultant Grant Gillham, who organized in the lobby efforts in the various states.

Besides killing bills, the companies have spent no less than $285,000 on California political campaigns since 2007, and tried to derail the career of Sen. Mark Leno, the San Francisco Democrat who has crusaded against the flame retardants. They contributed $5,000 to a $100,000 independent campaign attacking Leno as he ran for a Senate seat in 2008. Although he won the race, he never managed to get his bills through the Legislature.

Leno's final attempt came in 2011, and it wasn't pretty. A Seattle physician testified at a Senate Business & Professions Committee hearing about the tragic fire death of an infant, claiming she died in a terrible fire because of a lack of flame retardant.

Leno's bill failed on a 1-8 vote, when five Democrats joined Republicans to cast "no" votes. As it turned out, the doctor made up key details, the Tribune reported. There had been no fire death, at least not one that matched the doctor's description.

In each iteration, Leno's legislation sought to lift a regulation that requires furniture makers to add fire retardant chemicals. You might think that Republicans, who decry intrusive regulations, would have voted for it. Leno did win five Republican votes to get one of his bills through the Senate in 2009, but it died in the Assembly at the hands of Democrats and Republicans.

Brown, meanwhile, took office and adopted the issue. Tonya Blood, his appointee heading the Bureau of Home Furnishings, is expected to issue a revised Technical Bulletin 117 in early February. Presumably the state no longer will require brominated flame retardants to be added to furniture.

The industry no doubt will fight any change.

"We are deeply concerned about a proposed change that degrades fire safety," Carl Powell of Chemtura said in recent written testimony.

Even if the state succeeds, brominated flame retardants will linger for years. The issue will shift to one of replacement of toxic furnishings, and disposal. Perhaps there will a legislative effort to create a couch exchange.

Debbie Raphael, head of the California Department of Toxic Substances, doesn't equivocate when the topic turns to flame retardants: "This is a sentinel chemical that is indicative of so much that is wrong with the way chemicals are regulated in consumer products."

Raphael is part of an effort to make sure the government avoids making similar mistakes in the future. The Department of Toxic Substance Control plans to issue rules governing the so-called green chemistry program in the coming days.

The goal will be to analyze chemicals to determine whether benefits are worth the risk they pose. Initially, 1,200 chemicals will be reviewed. As Brown makes amends for a decision by the first Brown administration, flame retardants will be high on the list.

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